‘A woman, a dog, and a walnut tree, the more you beat ’em, the better they be’ - The Sri Lankan legal framework for prevention of domestic violence and abuse, a crisis in the age of the pandemic:
The Legal framework in Sri Lanka for the prevention of and punishment for acts of domestic violence is, mainly found within the Penal Code Ordinance No. 2 of 1883 (the ‘PC’), the Code Criminal Procedure Act No. 15 of 1979 (referred to as the ‘CPC’) and the Prevention of Domestic Violence Act No. 34 of 2005 (referred to as the ‘PDVA’) (collectively referred to as the ‘relevant laws’). The Sri Lanka Police (‘SLP’) and in the case of children The National Child Protection Authority (‘NCPA’) established by Act No.50 of 1998 assists inter-alia in the co-ordination and monitoring of action against abuse and violence.
What constitutes an act of ‘domestic violence’ and who is an ‘aggrieved person’?
The PDVA provides for the definition of "domestic violence" to mean ‘specified offences as contained the PC to include sexual abuse and exploitation, sexual harassment, physical abuse, assault, use of criminal force, incest, rape, causing miscarriage, wrongful and unlawful confinement, attempted murder as well as extortion and criminal intimidation and any attempt to commit any one or more of such offences’; additionally ‘emotional abuse" as defined to mean a pattern of cruel, inhuman, degrading or humiliating conduct of a serious nature directed towards an aggrieved person’
The inclusion for the first time in specific terms of ‘emotional abuse’ to be construed an act of domestic violence in widely couched terminology in the PDVA could be said to augur well for the cause.
Thus, the legal framework recognizing domestic violence/ abuse in gender neutral form and under the broad heads of physical, sexual and emotional; bringing within the scope albeit not directly, economic abuse and abuse by means of using technology.
An act of violence qualifying as ‘domestic violence’ when such is carried out withing the environment of a home or outside and between persons sharing a relationship ‘personal’ in nature, in the legal form of a spouse, ex-spouse or cohabiting partner.
In this context the PDVA provides for the right of relief to be sought by and against children of an aggrieved person or the perpetrator of the act as well as to extended family members of either person, to include parents and grandparents, siblings, in -laws, nephews and nieces, cousins and also ex-spouses and step-siblings and children. So, the law recognizing the socio-cultural dynamics of an average home in Sri Lanka.
A ‘Child’ for the purposes of the relevant laws shall be a person under the age of 18 years.
What is the relief that is afforded by law in Sri Lanka?
The law providing a civil remedy to ensure the safety/protection of the aggrieved person with the right to initiate separate additional civil or criminal legal proceedings as discussed below.
The PC provides for relief in the form of ‘punishment’ of the offender if found guilty of any one or more offences, in the form of imprisonment of either description rigorous or otherwise or a fine or both. The process of legal proceedings to take regular form as for any other Penal offence.
Parallelly, the PDVA most importantly and as a first in the legal remedies for such a cause of action, provides for the aggrieved person to obtain relief in the form of a ‘Protection Order’ with the added right to an ‘Interim – Protection Order’ pending the final determination and award of the Order.
A Protection Order to include an Interim- Protection Order, couched in wide terms may provide for prohibition on the Respondent, inter -alia from -
- Entering a residence shared with the aggrieved person and/or the place of employment, shelter and/or school;
- Having contact with a child if such is deemed by court to be in the best interests of the child;
- From contacting or seeking to contact the aggrieved person in any manner and/or engaging in an act construed to be a nuisance to an aggrieved person;
- On committing acts of violence against any person assisting the aggrieved person, whether such person be a friend, relation, social worker or medical officer;
- Selling, alienating or in any wise encumbering the matrimonial home so as to make destitute the aggrieved person;
- Engaging in any conduct which in the opinion of Court shall be detrimental to the safety, health or general well being of the aggrieved person or any other person requiring protection from the Respondent
Provided however that in imposing such prohibitions, the court is required to have heed to the needs of the aggrieved party and any children, concerning accommodation/residential facilities and any hardship that may be caused to the Respondent, thus requiring a fair and well-balanced judgment on the facts and circumstances.
A Court issuing a Protection Order, is empowered to issue, if of the view that for the immediate safety, health or welfare of the aggrieved person Supplementary Orders as are considered necessary, for inter-alia -
- The seizure of weapons that a Respondent may have in possession;
- For the aggrieved person to be accompanied and assisted by the Police in the collection of personal property from an identified location;
- To require the aggrieved person and the Respondent to attend rehabilitative therapy;
- To place the aggrieved person in a shelter or be provided with temporary accommodation;
- To require a social worker, family counsellor, probation officer or family health worker to monitor the party’s adherence to a Protection Order;
- To require the Respondent to continue to provide urgent monetary assistance to the aggrieved person or such other to whom such duty is owed in connection with the Order;
- To require the Respondent to make payments to and/or provide necessary accommodation facilities to the aggrieved person for period of the Protection Order, notwithstanding that the Respondent maybe prohibited from entering and/or sharing such accommodation
A Protection Order shall be valid for a period of 12 months from the date of its issue, and maybe varied at any time having heed to the circumstances, by Court of its own motion or at the instance of the Parties after due inquiry.
An Interim- Protection Order maybe issued Ex-Parte in the event the Respondent fails to appear as required and shall be valid for a period of 14 days at any one time.
The legal procedure to be followed as provided for by the PDVA and supported where necessary by the CPC, averting the need for complex and prolix pleadings, by providing for a form of plain and simple pleadings for institution of proceedings and affidavit evidence, thereby enabling a more time efficient process with a view to granting relief as quickly as possible.
A right of Appeal against the Order of a Magistrate in the issue or non-issue of a Protection Order lies to the High Court, with no automatic ‘Stay’ of an Order issued by the Magistrates Court.
The PDVA provides further that non-compliance with a Protection Order or an Interim- Protection Order shall constitute and offence liable to conviction after a summary trial to a fine not exceeding LKR 10,000/- (appr USD 50/- ) and/or imprisonment of either description for a period not exceeding 12 months.
Who may be institute legal proceedings?
Legal proceedings under the PC maybe instituted by the SLP or by Private Plaint of the aggrieved person in the Magistrates Court.
Legal proceedings under the PDVA maybe instituted in the Magistrates Court by Private Plaint of the aggrieved person or the SLP on behalf of such aggrieved person. In the case of a minor, by either parent or guardian of such minor, the SLP or the NCPA.
It must also be mentioned that as a first step, the most accessible recourse to an aggrieved party is to make contact with the nearest Police Station either via telephone or by visiting it and making a complaint against the offender. The process then allowing for the parties to be heard at an inquiry before the Police, who will seek to address the issues and seek a conciliation to the dispute. If such attempt fails for the lack of interest on the part of either party or if the Police deem it necessary in the interest of the safety of the complainant/the aggrieved person the Police will invoke the right of filing legal proceedings in the Magistrates Court under the PDVA seeking a Protection Order as thought fit, as well as such legal proceedings deemed necessary under the PC. Similarly, in the case of a minor the same process maybe followed with a complaint to the Police or the NCPA.
Sri Lanka having an adequate legal framework, with the ‘penal’ provisions as well as ‘civil’ remedies it is hoped that the authorities will seek to understand and address the drivers of domestic violence/abuse and support to enforce the law as well as develop support mechanisms at a practical level to protect the victims of abuse and violence, a crying need specially for the abused women and children during the lockdowns of the pandemic.
References: Groundviews - ‘The Domestic Violence act: Seven years on’ by Chulani Kodikara
OpenDemocracy – ‘Domestic Violence in Sri Lanka: An Alternative Discourse’ by Chulani Kodikara
This is only an overview of the applicable law and should not be relied upon as legal advice or recommendation by D. L. & F. De Saram, a leading law firm in Sri Lanka.
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